26 October 2020


Judgments

High Court of Tripura

Uttam Deb Vs. The State of Tripura

MANU/TR/0265/2020

27.07.2020

Criminal

Fraudulent or dishonest intention must exist at the time of initial promise or formation of contract

The Petitioner being the convict has challenged the judgment and order of conviction and sentence delivered in case by the Judicial Magistrate, by means of present revision petition, filed under Section 397 read with Section 401 of the Code of Criminal Procedure, 1973 (CrPC). By the said judgment and order of conviction and sentence have been upheld by the Additional Sessions Judge, by his judgment and order.

The appellate Court has affirmed the finding of the trial court that, the delay in filing the complaint is not fatal for the prosecution and as such, the conviction under Section 420 of Indian Penal Code, 1860 (IPC) suffers from no infirmity as 'cheating' as defined under Section 415 of IPC has been well-proved. The appellate Court has also observed that, the dishonest intention has been proved for the 'conduct' of the Petitioner from the very inception of the transaction and thus, the inducement defraud has been well substantiated to attract conviction under Section 420 of the IPC. The present petition has challenged the said judgment passed in the appeal.

In Murari Lal Gupta vs. Gopi Singh, it has been enunciated by the apex Court that, fraudulent or dishonest inducement unless is made coupled with delivery, the culpable act cannot be stated to be 'cheating by dishonest inducement' towards delivery of property. Such dishonest intention can be proved by direct evidence or it can be proved by circumstances from which a reasonable inference can be drawn. Further, mens rea at the time of inducing the person deceived to deliver any property to a person, is an essential ingredient to constitute an offence punishable under Section 420 of the IPC.

The prosecution was launched on the basis of the complaint. The statements of the victims were recorded by the police station after long time of the occurrence. On scrutiny, no single line would be available in the complaint that at any point of time, the Petitioner had introduced that if he had invested the money in UNIPAY 2 U, that it will fetch high return in the form of interest. Even when the statement of PW-1 was recorded during investigation (under Section 161 of the CrPC) he did not state to the investigating officer [PW-9] that, such inducement was extended to him by the Petitioner.

It is very difficult to believe that, someone had been depositing money through an agent without asking for any receipt or without any agreement. No agreement can be complete without the signature of the depositor or the investor. PW-1 has categorically stated that, neither he nor his wife or daughter had ever signed any paper. As such, the story of making investment through the Petitioner is visited by serious doubt and hence, the benefit would go to the Petitioner.

PW-9 is the investigating officer and he had recorded their statements during the investigation. PWs 1, 2, 3, 4 and 8 have embellished their statement to ensure the conviction of the Petitioner by completely deviating from their statement, recorded by the investigating officer during the investigation. The investigating officer [PW-9] has categorically stated that, the facts of inducement for making payment or demanding for money receipt or denying to pay back the money were never stated to him. Thus, those testimonies have become susceptible to doubt. Thus, the cumulative effect of such development is that, the Petitioner is entitled to get the benefit as there is no legal evidence to show that, there existed dishonest intention from inception of the transaction or the delivery of money was made under inducement.

'Cheating' by the Petitioner has not been established beyond reasonable doubt. Even, there is no element of mens rea. In Harmanpreet Singh Ahluwalia and Others vs. State of Punjab and Others, it has been clearly held by the apex Court that, fraudulent or dishonest intention must exist at the time of initial promise or formation of contract. Such fraudulent or dishonest inducement at the inception of transaction has not been proved by the prosecution to the hilt. The judgment and order stand quashed. As consequence thereof, the Petitioner is acquitted from the charge under Section 420 of the IPC on benefit of doubt. Petition allowed.

Relevant

Harmanpreet Singh Ahluwalia and Others vs. State of Punjab and Others MANU/SC/0747/2009
, Murari Lal Gupta vs. Gopi Singh MANU/SC/2806/2005

Tags : Conviction Evidence Credibility

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